The California Family Rights Act of 2018 is a California law that provides employees with job-protected leave. The California Family Rights Act 2018 builds upon existing California and medical leave laws. Those laws were enacted in 1991. In 1993, the federal Family and Medical Leave Act (FMLA) was signed into law. The FMLA provides qualifying employees with up to twelve weeks of job-protected leave, in a twelve-month period, for certain events. FMLA leave may be used by an employee to attend to the employee’s serious health condition, or to the serious health condition of a family member.
FMLA leave may also be used for the birth of a child, the adoption of a child, or the placement of a child in foster care. Under the California Family Rights Act (CFRA), employees may take this same amount of unpaid leave, 12 weeks in a twelve-month period, for the same reasons. The CFRA and FMLA differ in other aspects. These aspects concern what employees are eligible for leave, and what constitutes a “family member.”
For example under the FMLA, an employee can take leave to care for a family member who is a servicemember. The servicemember must be a parent, child, or another next of kin. However, the CFRA does not permit leave to attend to a servicemember. The two laws don’t define “serious health condition” the same way. For example, under the FMLA, pregnancy qualifies. Under the CFRA, it does not.
What are Some Protections Provided by the CFRA?
CFRA leave, like FMLA leave, is “job-protected.” This means that when an employee’s period of leave is finished, the employer is obligated to reinstate that employee. The employer must reinstate the employee to either the same position, or a comparable one. An employee may (but is not required to) request that the employer put this obligation in writing.
In some instances, when an employee returns to work, the employee’s position no longer exists. This may be due to a reduction-in-force (RIF), layoff, or closure. When the position is no longer available,a comparable position must be offered to the returning employee. Under the CFRA, a “comparable” position is one that is comparable in a number of aspects. These aspects include:
- Rate of pay;
- Workshift hours and schedule;
- Geographic area; and
- Working conditions.
If an employer provides group health insurance used by the employee, the employer has to continue to offer it during leave. The employer need not pay for the insurance premiums, but must allow the employee to remain on the plan. An employer may provide for seniority rights, or offer an employee the opportunity to enroll in other benefit plans (such as life insurance plans). Under the CFRA, the employer must permit the employee to accrue their seniority. The employer must also allow continued employee enrollment in these other benefit plans.
In addition, an employer may not retaliate against an employee because the employee has used, is using, or has requested CFRA leave. Retaliation means taking an adverse or negative action against the employee because that employee exercised CFRA rights. Examples of an adverse action include pay cuts, demotions, or termination.
Who is Eligible for a CFRA Leave?
The CFRA has specific employee eligibility requirements. To be eligible for CFRA leave,an employee must either be full-time or part-time. The work the employee performs must be in California.To be eligible for CFRA leave, an employee must have worked for the employer for at least twelve months prior to the request of leave. In addition, an employee must have worked 1,250 hours or more in the twelve-month period immediately preceding the request for leave.
Leave entitlement also depends upon the size of the employer. If the employer employs 20 or more people, the leave that can be taken only for the birth of a child, or the placement of a child, either for adoption or foster care. If the employer employs 50 or more people, employees may take leave for these reasons. Employees may also take leave for their own serious health condition, or to care for a family member (child, spouse, or parent) with such a condition.
Notably, the CFRA includes a registered domestic partner in its definition of “family member,” while the FMLA does not. Both laws include same-sex spouses in that definition.
What is Considered a Serious Health Condition under CFRA Leave?
The CFRA specifically defines the phrase “serious health condition.” Under the CFRA, a serious health condition must be one of the following:
- An impairment, injury or illness; or
- A mental or physical condition.
The condition must either cause or require certain things. To be a “serious health condition,” the condition must cause or require:
- A period of incapacity (period during which the employee is unable to work) that is connected to inpatient care; or
- A period of treatment that constitutes inpatient care; or
- A period of inability to work after inpatient care; or
- A period of treatment after inpatient care; or
- A period of inability to work that necessitates absence from school, normal daily activities, or employment, of four or more consecutive calendar days; or
- Ongoing treatment by a healthcare provider, for an incurable long-term oran incurable chronic condition; or
- Dental surgery required because of an accident or injury; or
- Plastic surgery required because of an accident or injury.
Examples of serious health conditions include treatment in the form of heart transplant. Any treatment needed after and because of the transplant is also a serious health condition.
If an employee’ s face becomes disfigured due to an auto accident, the employee may use CFRA leave for plastic surgery required to correct or mitigate the condition. If an auto accident requires that an employee receive dental surgery, the employee may use CFRA leave.
In contrast, if an employee undergoes voluntary or cosmetic dental or plastic surgery procedures, those treatments are not regarded as serious health conditions. Examples of voluntary procedures include face lifts, or other skin-lifting procedures. Examples of cosmetic procedures include rhinoplasty (nose jobs), if the procedure is not required.
In addition, the term “serious health condition” does not include a routine physical or check-up. Routine preventive physical examinations are excluded.
What If Am Fired Because I Took CFRA Leave?
If your employer terminates your employment because you took CFRA leave, the employer has violated the law. You can seek redress by filing a complaint with the California Department of Fair Employment and Housing (DFEH). DFEH will then begin an investigation. DFEH attempts to resolve the dispute, through voluntary settlement. If the employee and employer refuse to settle, DFEH can bring a civil lawsuit in California civil court.
The judge hearing the lawsuit between DFEH and the employer will issue a decision. If the judge finds that the employer violated the CFRA, the judge may award damages to the employee. Damages can include job-related compensation, such as back pay and reinstatement. Damage may also include costs incurred by the employee for having to hire an attorney (attorneys fees). In addition, the judge may also award damages for an employee’s emotional distress.
Should I Hire an Employment Attorney?
If you believe your employer has violated your CFRA rights, you should contact an experienced California employment law attorney. An experienced employment law attorney near you can review the facts of your case. The attorney can explain your rights, and which remedies to which you may be entitled. The attorney can assist you with settlement or in DFEH court proceedings.